Marlin/phoenix - Credit Card - N1 Received ** DISCONTINUED **

[lilly white]

HOPE THIS HELPS

 

 

The Assignment of the Debt

 

 

19. If the Claimant was not XXXXXXXXXXX then it is not admitted that there was a lawful assignment. The Claimant is put to strict proof that the assignment was lawful and is put to strict proof that sufficient notice thereof was served upon myself. Without this proof the Claimant has no standing before the court.

 

 

20. The Law of Property Act 1925 is the relevant act that deals with the assignment of debts. Section 136(1) requires that for the assignment of a debt to be effective, express notice in writing must have been given to the debtor:-

 

136. Legal assignments of things in action.

— (1) Any absolute assignment by writing under the hand of the assignor (not purporting to be by way of charge only) of any debt or other legal thing in action, of which express notice in writing has been given to the debtor, trustee or other person from whom the assignor would have been entitled to claim such debt or thing in action, is effectual in law (subject to equities having priority over the right of the assignee) to pass and transfer from the date of such notice—

 

21. However, it is Section 196(4) that prescribes the requirements for giving sufficient notice by post:-

 

196. Regulations respecting notices.

(4) Any notice required or authorised by this Act to be served shall also be sufficiently served, if it is sent by post in a registered letter addressed to the lessee, lessor, mortgagee, mortgagor, or other person to be served, by name, at the aforesaid place of abode or business, office, or counting-house, and if that letter is not returned [by the postal operator (within the meaning of the Postal Services Act 2000) concerned] undelivered; and that service shall be deemed to be made at the time at which the registered letter would in the ordinary course be delivered.

 

22. It is noted that by the Recorded Delivery Service Act 1962 a recorded delivery letter is equivalent to a registered letter and that under the Postal Services Act 2000 Schedule 8 any reference to registered post is to be construed as meaning a registered postal service (eg Royal Mail recorded delivery or special delivery).

 

 

23. For the assignment of a debt to be effective and so giving the Claimant a right of action a valid Notice of Assignment must have been sufficiently served on me using a registered postal service pursuant to s196(4) before proceedings were commenced. The Claimant is put to strict proof that any notice of assignment was sufficiently served on me before proceedings were commenced. Without this proof, the Claimant has no right of action.

 

 

24. Further, it is submitted that the mere fact of giving a notice does not, of itself, create an assignment and that there must be an actual assignment in existence. It is the actual Assignment, not just the Section 136 notice, under which the Claimant derives title to bring the claim and the Claimant is put to strict proof that such Assignment exists. It is further averred that I am entitled, in any event, to view the document of assignment as a matter of law (Van Lynn Developments v Pelias Construction Co Ltd 1968 [3] All ER 824)

 

 

 

 

25. It is further averred that to be valid the the alleged notice of assignment must accurately describe the assignment including the date (W F Harrison & Co Ltd v Burke & another [1956] 2 ALL ER 169).

 

 

[hunterandthehunted]

CG,

 

any news on the claimants letter to the judge?

[Craftygirl42]

I rang the court and from what she read out the judge has made an order about the fact they have looked for the default but cant provide it. It was rather garbled, but the case manager is going to type it up and get it out to me. Have you heard about yours yet

[Craftygirl42]

Thank you Magda and Lilly. I am just waiting to see what comes from the court, but will also write to Marlin with the suggested letter and see what happens. Think the letter from the Court is about the fact they cant find the default notice. If the lack of assignment enforces my case, then hopefully between the two it will get them to back off

[Craftygirl42]

Right received the order from the court and it says

 

Clause 2c of the order of 15 November be amended to include a letter confirming that a reasonable search has been carried out to locate the required documentation giving details signed by the manager conducting the seach in the archives of HSBC/and or claimant

 

This is cos they claim not have the default or termination. Where do I go from here....please can someone help and reassure me its all ok

[hunterandthehunted]

I rang the court and from what she read out the judge has made an order about the fact they have looked for the default but cant provide it. It was rather garbled, but the case manager is going to type it up and get it out to me. Have you heard about yours yet

 

 

CG,

yes i rang the court and they cannot provide default notice.

they havent even filed anything what was ordered, no disclosure statement at all... i am really confused

[Craftygirl42]

We are the same then hunter. No default notice, at least if we watch each others threads, one of us will hopefully get some help on how to proceed

[hunterandthehunted]

hopefully...

 

big waves to the guest

[Craftygirl42]

hopefully...

 

big waves to the guest

 

 

I had two at one point....arent I lucky

[postggj]

Hi Craftygirl

Got Your Message

 

Can You Give Me A Brief Udate As It Stands At The Moment

[Craftygirl42]

Thank you Post, any help is appreciated

 

I had a small disclosure sent by the creditor and they said they didnt havve the termination and the default in their possession. They wrote to the court and the judge has ordered

 

Clause 2c of the order of 15 November be amended to include a letter confirming that a reasonable search has been carried out to locate the required documentation giving details signed by the manager conducting the seach in the archives of HSBC/and or claimant

[AndyOrch]

Thank you Post, any help is appreciated

 

I had a small disclosure sent by the creditor and they said they didnt havve the termination and the default in their possession. They wrote to the court and the judge has ordered

 

Clause 2c of the order of 15 November be amended to include a letter confirming that a reasonable search has been carried out to locate the required documentation giving details signed by the manager conducting the seach in the archives of HSBC/and or claimant

 

 

Hi CG

 

The above is the DJ leading the Claimant and allowing them not to disclose and dispensing with the need to disclose by complying with a letter saying they have made every effort.Dont be suprised if they introduce another WS stating that sorry we havent got them but this is what they would have looked like if we did have them:rolleyes:

You must object to the above clause and also ask oneself why the DJ as amended the order;)

 

Regards

 

Andy

Edited November 19, 2009 by Andyorch

[Craftygirl42]

So how do I object. We havent done WS yet. Not sure what you mean by asking myself why the DJ has amended,

[Craftygirl42]

Just rang the court and they suggested that I write to the Judge to object. I was thinking of attaching the part of the Consumer Credit Regulations that I copied from Post's thread, just so the judge is aware of the regulations.

 

What does everyone think

[Spamalot]

Hi Crafty,

 

I'm a bit out of my depth here as I've not experienced any of what you're going through but I think what you have suggested is a good idea..

 

It seems MC are trying to hoodwink the judge and you need to point out the error of his ways... no paperwork means no case to answer... if they can't prove they have the stuff then on a balance of probabilities there isn't any so the case should be struck out...

 

That's my humble opinion anyway...

 

Spam.

[MAGDA]

If they didn't have these documents Craftygirl, they shouldn't have brought these proceedings in the first place. It's the same with creditors who take people to court knowing full well theydon't even have an agreement - they hope to push it through anyway.

 

Magda

[Craftygirl42]

Letter is sorted and bringing the fact that a default notice is required to the judges attention, will wait and see what happens.

 

Marlin were getting payment and would have continued, except they decided to get tough. They havent done themselves any favours. I will continue to fight on and work on educating the judge on the requirements.

[AndyOrch]

I can only emphasis that any amendment to Orders by way of extra clauses in my eyes, is just away to obfuscate court proceedings.By way of this amendment the DJ is allowing the Claimant a loop hole to get around non disclosure and in the same instance not allowing yourself to strike out on this loophole, therefore denied you equal footing.

 

Regards

 

Andy

Edited November 19, 2009 by Andyorch

[citizenB]

Hmmm, had you received a subject access request from this crowd ?. If so, have a look see if you have a diary of events/ communications log. Their DN should be recorded somewhere. So it might be interesting to ask for that as proof also that one was sent.

[Craftygirl42]

I can only emphasis that any amendment to Orders by way of extra clauses in my eyes, is just away to obfuscate court proceedings.By way of this amendment the DJ is allowing the Claimant a loop hole to get around non disclosure and in the same instance not allowing yourself to strike out on this loophole, therefore denied you equal footing.

 

Regards

 

Andy

 

 

A little confused.

 

The fight isnt over yet though is it. I just need to get the DJ to see that a default is needed, after all its mentioned in their POC.

 

CB - no subject access on this

[AndyOrch]

A little confused.

 

The fight isnt over yet though is it. I just need to get the DJ to see that a default is needed, after all its mentioned in their POC

 

Absolutely its not over, I'm just pointing out the whole picture what the clause is intended to achieve, to enable you to prepare and object before the stable door is slammed shut.

 

Andy

[Craftygirl42]

Andy - in your opinion, should I be forking out the £35 for the N244 or go with the suggestion of the court manager to write a letter and in her words, the DJ may accept that or request that I do a N244.

 

I have prepared a letter stating that I object and that I feel a default is necessary, especially as its mentioned in the POC and also attached details I found on another thread re the importance of a default

[AndyOrch]

I personally would submit the N244 along with the reasons for the application, dont give them an opportunity to say that you have not followed protocol.Most DJs wont entertain anything else.

 

Regards

 

Andy

 

Ps I understand its £40 without an hearing but you can check

[Craftygirl42]

Thank you Andy. I will have a look around for details in completing the N244. What would you suggest I put as my application. Am I going for strike out, set aside or whatever.

Edited November 19, 2009 by Craftygirl42

[AndyOrch]

I personally think its a little premature to go just for strike out in this instance and therefore would apply to set a side the amended clause,you could edge your bets, and also request that in the event of the Claimant failing to provide said docs it is requested that the DJ consider a strike out of the Claimants case also etc .... and if successful consider submitting your wasted costs and application fees.

 

Regards

 

Andy